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6 years ago I moved into my girlfriends house and rented out my house, we both have seperate mortgages on the two properties. Last October we got married so are now husband and wife.

We have decided to move, sell my wifes property and the new mertgage will again be in my wifes name only, this means it will replace our current home of 6 years.

We are getting conflicting information regarding stamp duty, Solicitor wants to charge us the surcharge as we are married and it's a second property and yet HMRC helpline advised because we are replacing our main residence with a new main residence it doesn't apply.

Because you are married you are able to rely on the sale by your spouse of the property you have been living in as your only residence to get you within the exception from the 3% SDLT surcharge when you are (or are treated as) a joint buyer of another property you intend to live in as your only residence. It does not then matter that you retain another property.

For surcharge purposes it makes no difference whether the purchase is by your wife alone or by you and your wife. If your are not joint buyers then you are treated for the purposes of the higher rates of SDLT as if you are joint buyers.

I appreciate that we are classed as "One" and even though it's my wife purchasing the property we are classed as one unit, What is unclear is that we are replacing our home, our "Main" residence so everything I see believes me to think that as we are replacing our main residence even though i still have a share in my ex wifes house we do not pay the surcharge.

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